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The Session Week 16: Tensions are running high

As the 2023 legislative session sprints to the finish line, tensions are running high over bills targeting transgender Montanans and environmental regulation. Host Corin Cates-Carney and reporters Arren Kimbel-Sannit, Ellis Juhlin, and Mara Silvers discuss what to expect in the final days of the legislature as lawmakers scramble to reach sine die.

Corin Cates-Carney: There are at most ten days left in the 2023 legislative session. Lawmakers are searching for final compromises and tensions are running high.

Rep. Zooey Zephyr: If you are forcing a trans child to go through puberty when they are trans, that is tantamount to torture. And this body should be ashamed. Thank you, Mr. Chairman. I speak on behalf of our caucus. We will not be shamed by anyone in this.

Corin Cates-Carney: Bills that could weaken the States Environmental Policy Act. And the Republican supermajority is still debating bills targeting transgender Montanans. This is The Session, a look at the policy and politics inside the Montana State House. I'll be your host this week. I'm Corin Cates-Carney with Montana Public Radio.

Arren Kimbel-Sannit: And I'm Arren Kimbel-Sannit with Montana Free Press.

Mara Silvers: And Mara Silvers with Montana Free Press.

Ellis Juhlin: And I'm Ellis Juhlin with Montana Public Radio.

Corin Cates-Carney: From the outside looking in, the Legislature looks a bit chaotic right now. A lot of bills moving very quickly. A lot of debate. And that debate isn't always focused on policy. How is it feeling in the Capitol right now?

Arren Kimbel-Sannit: Yeah, Corin, it is really chaotic. I think that's kind of normal for when you are at the point where there's basically ten days left in the session and the Constitution doesn't allow you to go any longer. And there's still a lot of work left to get done, especially when we're talking about spending bills. I think a really good example of where we are in the session was when last week, the Senate Budget Committee was debating House Bill 5, which is the big infrastructure spending proposal. It very quickly devolved into a cascade of competing proposals to spend money for projects back at home. And almost all of these proposals were introduced as conceptual amendments, meaning they don't actually exist in writing. But eventually it became too much for the committee chair, John Esp, who's a Republican from Big Timber, and he recessed and said,

Rep. John Esp: I just wish we were doing this on the floor of the Senate where God and everybody could see it.

Arren Kimbel-Sannit: And because of that House Bill 2, the budget, got pushed back. House Bill 5, the infrastructure bill got pushed back. And that has huge ramifications for the sort of logistics of the last week and a half of session. So I think that's a pretty good indicator of where we're at.

Corin Cates-Carney: Lawmakers will have to pass that budget before they leave Helena. Is there a sense that, you know, some of these other ideas could just be left on the cutting room floor given the timeline?

Arren Kimbel-Sannit: I think there's always that possibility, but it is important to remember that as chaotic and rushed as this session has felt, and as much as there is an obscene volume of legislation, this is a pretty standard part of the legislative process. So of course there's going to be bills, some of which will have pretty significant price tags or budget ramifications, that won't make it, but I wouldn't necessarily say that because of where we are, there's going to be a greater incidence of bills getting killed than in any in any other session. As any seasoned lawmaker lobbyist will tell you, nothing is dead until sine die, and that gives us about ten days for a lot of things that as early as a few days before we might have thought were dead, too, to come back and move through the process, through any number of different mechanisms.

Corin Cates-Carney: And sine die is that official motion that ends the session. Moving now to one of those moving pieces in the final days. Lawmakers recently suspended their rules to introduce a bill late into the session that would prevent regulators from considering greenhouse gas emissions when reviewing projects like mining or energy developments. Ellis, I know you've been following this. This debate has popped up here at the end of the session. What's motivating it?

Ellis Juhlin: Well, Corin, the debate centers around a recent district court judge ruling that halted construction on a natural gas plant in Laurel. The judge revoked the air quality permit issued to the project by Montana's Department of Environmental Quality, saying that they failed to sufficiently take into account the plant's greenhouse gas emissions and the potential impacts of that on climate change. Republican lawmakers said this was an overreach on the judge's part, so they suspended the rules to introduce a bill about a month after the normal deadline. And that bill would essentially exclude greenhouse gas emissions from what DEQ has to consider with their process under Montana's Environmental Policy Act. It's basically the legislature's attempt to invalidate this ruling, but we won't really know how that will all play out until much later.

Corin Cates-Carne: Who is speaking out on the bill?

Ellis Juhlin: There were over 60 people in attendance at the bill's hearing late last Monday. Lawmakers that are supportive of this bill say the judge's ruling could create additional challenges for issuing permits, which could stall out economic development for industries like mining and logging. And we heard this argument echoed by the bill's supporters, which included lobbyists that represented coal counties, contractors, chambers of commerce, petroleum and resource associations, and even a former Butte lawmaker. Opponents of the bill included several people that live next to this Laurel plant site, and they said they're really feeling ignored and changing MEPA could further restrict their ability to stand up for themselves, especially in light of some other legislation that we've seen. And this is the second bill that would change what's included under MEPA. And it really all centers around this policy versus protection argument. Proponents say that MEPA is procedural, so it can't be used to make decisions that will block progress and permits. But opponents are saying that it's substantive and it's the primary way for individuals or groups like tribes or non-profits to question the government's decision. So we're really at a big crossroads here.

Corin Cates-Carney: Yeah, it sounds like a pretty weighty debate. And as we've kept saying, there's not much time left in the session. Do these policies have the political support to get to the governor's desk in the next two weeks?

Ellis Juhlin: Based on the breakdown of votes so far, it definitely seems like it's votes have fallen almost completely along party lines, both in committee and during the bill's first vote on the House floor on Friday, though, we did see Republican Representative Lee Deming, who's from Laurel, vote against the bill on behalf of his constituents.

Rep. Lee Deming: Many of my friends and neighbors live across the river from this project, and so have deep concern about this project in general.

Corin Cates-Carney: So changing directions now, Mara, late last week, we saw the Speaker of the House block Missoula Representative Zooey Zephyr from speaking on the House floor. Zephyr is the state's first openly transgender female lawmaker. How did this happen?

Missoula Rep. Zooey Zephyr, one of Montana’s first transgender lawmakers, is blocked from speaking on the House floor after she condemned Republicans for advancing anti LGBTQ legislation.

Mara Silvers: Yeah. So to explain this, I'm going to back up a little bit because this is actually about a policy fight that's been going on for most of the session. So earlier last week, Governor Gianforte returned Senate Bill 99 to the Senate and House with a few amendments. And if listeners don't remember, that's the bill to ban medical treatments for transgender minors who want to delay puberty or start taking cross-sex hormones. And the amended version of the bill sailed through the Senate with Republican support. But when it got to the house, Representative Zephyr really had some sharp words for her colleagues who were likely to vote in favor of it. She said the bill will force trans teens to go through puberty and make their gender dysphoria worse if that's what they're experiencing.

Rep. Zooey Zephyr: If you're forcing a trans child to go through puberty when they are trans, that is tantamount to torture.

Mara Silvers: So she said the legislature should be ashamed of passing the bill and alluded to the increased risk of suicide for trans youth who are blocked from accessing gender affirming medical care.

Rep. Zooey Zephyr: If you vote yes on this bill and yes on these amendments, I hope the next time there's an invocation, when you bow your heads in prayer, you see the blood on your hands.

Mara Silvers: Republicans objected to those comments, saying Zephyr was shaming Republicans and maligning their motives for voting in favor of the bill. And in the next few days, she didn't apologize. She stood by what she said. She was very clear that she meant what she said, and she sees suicide among trans youth as a very real and urgent issue that the body needs to consider. So then on Thursday, when the House was debating another bill that Zephyr wanted to speak about, which would define sex in state law in a way that sidesteps transgender and many intersex people, Speaker Matt Regier ignored Zephyr when she tried to speak on the House floor.

Corin Cates-Carney: And just to be clear, the Speaker has the power to determine if and when lawmakers speak. In this case, Regier's decision means Zephyr can't argue for or against policy that's on the House floor. And it's not rare for debates over decorum to happen in the House. But for a lawmaker to not be able to speak in this way is much more uncommon.

Mara Silvers: That's exactly right. So Regier's decision on Thursday led to a rules debate in which Republicans ultimately overruled Democrats and agreed that Regier was within his right not to call on her. But then when the Rules Committee adjourned and lawmakers returned to the house floor, Zephyr tried again. Lawmakers again took a vote on whether or not Speaker Regier was correct in not recognizing her, and Republicans got their way, and Zephyr sat down, and the same thing happened again on Friday. So at this point, we are coming to the conclusion that unless and until Zephyr apologizes for comments that she made in a way that's acceptable to Speaker Regier, she will likely not be recognized on the floor for the remainder of the session.

Corin Cates-Carney: We've seen numerous bills targeting trans people this session. At this point, they're no longer just campaign rhetoric or talking points. They're nearly laws. Are Republicans staying united in this effort? Do you know anything about Gianforte's plans if these bills reach his desk?

Mara Silvers: It's a bit of a mixed bag with Republicans right now. Senate Bill 99 is now headed back to the governor's desk after seeing very little Republican opposition last week. Senate Bill 458, which was the other bill Zephyr was trying to speak about — the bill to codify strict definitions of male and female in state law — that's also on its way to the governor's desk. And it would be pretty surprising to see Governor Gianforte veto either of those bills. The national climate has shown that Republicans really see legislating the lives of transgender people as a very effective political strategy for mobilizing some of their conservative base. But there has been one big curveball on this topic in recent weeks. Republicans in the Senate supported a type of off ramp for a bill that would have banned drag performances and drag story hours in a lot of public places. And we saw that when Billings Senator Chris Friedel amended House Bill 359 to strike every reference to drag and instead clarify that the bill was putting more restrictions on adult oriented performances, which was the only way Friedel said he thought it could survive First Amendment lawsuits in court.

Sen. Chris Friedel: The reason I brought this amendment today is to make sure that we get this across the aisle. We get this in front of the governor. He signs it. It goes to court, and it can be defended by the AG's office. I asked for a do pass.

Mara Silvers: So that amended version of the bill has not yet been re-debated in the House and it will be really interesting to see whether or not the Senate's approach gains traction in the other chamber or if House Republicans try to move the bill back towards its original, specific intent of targeting drag shows.

Corin Cates-Carney: Looking forward to the next ten or so days, I remember way back in this winter when we were talking about what to expect this session. A lot of it came down to unity within the new historic supermajority of Republicans. And as we're entering this crunch time, when there's these final negotiations going on, how are Republicans and the governor working together or not to get these final deals done?

Arren Kimbel-Sannit: I think by and large, Republicans have been fairly successful in keeping the various factions together. However, you know, I think you'll hear people admit that on a certain level, having 102 Republicans, while it does grant you a more than two-thirds supermajority, is also a lot of cats to herd. And we've definitely seen examples, especially when we're looking at differences between the governor's office and the legislature of priorities where there's just not a lot of congruence. Kind of one way that I think it's kind of funny to think about this. I was talking to a Senate Democratic staffer earlier. Obviously, they have a vested interest in seeing Republican bills fail. So take this with a grain of salt who basically said, well, if you want a spending bill to fail, the best way to do it is to put the governor's name on it. There's a lot of Republicans in the legislature right now who I think, you know, maybe feel a little frustrated or shut out of the process. I would say that just because Republicans are trying to swing their weight around in the legislature doesn't mean that in, you know, a little over a week's time, they're necessarily going to get their way when the rubber hits the road. As I said earlier, nothing is dead until sine die. And if you're the governor, you have a way of making things happen for you, regardless of what lawmakers do.

Corin Cates-Carney: A lot can happen in ten days. Mara, Ellis, Aren, thank you for being on the show this week.

Mara Silvers: Thank you.

Ellis Juhlin: Thanks.

Arren Kimbel-Sannit: Thank you.

Corin Cates-Carney: Before we go, the state's $13 billion budget is nearing Governor Greg Gianforte's desk and the governor recently celebrated his effort to cut regulations across the state, although some of that work isn't done yet.

This has been The Session, a preview of the policy and politics inside the Montana State House. The Session is produced by Montana Free Press, Montana Public Radio and Yellowstone Public Radio. Join us next week for a new episode and subscribe wherever you get your podcasts.

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